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Labor Relations Update

NLRB Issues Union Friendly Decision Regarding Applicability of Quickie Rules: When 94% Just Ain’t Enough

Posted in NLRB

With that the NLRB’s quickie election rules going into effect in April 2015, we are just now starting to see the Board decide cases applying the new rules.

In Danbury Hospital, Case 01-RC-153086, the Regional Director for Region 1 on October 16, 2015, lent his interpretation to one of the new requirements of the quickie election rules, namely the employer’s obligation to provide employees’ personal phone number and personal email address if such data was “available” to the employer.

There, the employer provided the union with all of the personal phone and email addresses it had in its human resources computer system- about 94% of the bargaining unit.  The human resources computer system did not have this data for the other 6% of the bargaining unit.  An election was held where the union was narrowly defeated.  The union filed objections to the election and asking for a re-run election claiming that the employer failed to comply with the new quickie election rules by failing to provide the personal email addresses and phone numbers for the other 6% of the bargaining unit.  At the objections hearing, it was discovered that one of the employer’s supervisors maintained an independent list of email addresses and phone numbers separate from the human resources computer system.

The Regional Director, agreeing with the union, found that because the employer did not supplement the list it collected from its human resources software with the supervisor’s list it failed to comply with the new rules and thus ordered a re-run election.

Based on this case, it is clear that the NLRB is taking a very broad view of the new quickie election rules.  Employers should take steps now to consolidate employees’ personal information prior to union organizing attempts.  If you have any questions about this case, or the Board’s new quickie rules, please feel free to contact us.

The National Labor Relations Board says “Happy Labor Day” with Flurry of Late Summer Pro-Union Moves

Posted in NLRB

While some people may have been on vacation at the end of August, the past few weeks have been extremely busy at the National Labor Relations Board (“NLRB” or “Board”), with a series of decisions that will continue to make it easier for unions to organize non-union employers.

Virtual Organizing Has Arrived! The General Counsel Issues Guidance that Electronic Signatures Are Valid In Representation Cases

On September 1, the General Counsel issued guidance that unions may submit electronic signatures to satisfy a showing of interest in representation cases. No longer will an actual signed union authorization card be necessary, opening the door for virtual organizing, eliminating physical barriers that may previously have prevented union organizers from communicating with employees.
Memorandum GC 15-08 details the requirements for petitions containing electronic signatures to be valid. Such submissions must include:

  1. the signer’s name;
  2. the signer’s email address or other known contact information (e.g., social media account);
  3. the signer’s telephone number;
  4. the language to which the signer has agreed (e.g., that the signer wishes to be represented by said union for purposes of collective bargaining or no longer wishes to be represented by said union for purposes of collective bargaining);
  5. the date the electronic signature was submitted; and,
  6. the name of the employer of the employee.

The General Counsel also requires the party submitting the electronic signature to submit additional information identifying and explaining what technology was used to ensure that the electronic signature is that of the signatory employee, that the employee herself signed the document, and that the electronically transmitted information is the same information seen and signed by the employees.

While the General Counsel notes that its requirements are more stringent that what is required for non-electronic signatures, this is a dramatic shift in how unions can generate the required 30% interest to get a Board election. With virtual organizing, it makes it more likely that an employer will never see the organizing activity (before it’s too late).

Labor Board Rules That An Employer May Not Terminate Dues Deduction Upon Expiration of CBA: Take Two

In a long expected decision, on August 27, the NLRB, in Lincoln Lutheran of Racine, 362 NLRB No. 188, a 3-2 decision, ruled that an employer may not unilaterally cease making dues deductions upon the expiration of a collective bargaining agreement. This decision explicitly overturns Bethlehem Steel, a case which stood for more than 50 years.

If this sounds familiar to you, you are not having déjà vu. The NLRB decided a case in 2012 with the identical holding. However, the 2012 case was vacated as a result of the United States Supreme Court’s decision in Noel Canning. Thus, Bethlehem Steel, while on very shaky footing, was given a three year reprieve…until now.

Employers with collective bargaining agreements should review their agreements to determine whether they have a dues deduction provision. If so, employers should now treat the provision like any other mandatory subject of bargaining and not deviate from the provision even after a contract has expired.

NLRB’s New Successorship Rule Raises the Question of Whether Worker Retention Statutes Are Preempted By Federal Law

Also on August 27, 2015, the National Labor Relations Board decided in GVS Properties, LLC, 29-CA-077359, 362 NLRB No. 194 (Aug. 27, 2015), the issue of when an employer required to hire its predecessors’ employees under a state or local worker retention law becomes a successor (under labor law) and is required to recognize and bargain with the union representing the predecessor’s employees.

The statute at issue in GVS Properties, the New York City Displaced Building Service Workers Protection Act (“DBSWPA”), mandates that a successor employer in the building service industry retain its predecessor’s workers for a 90-day transition period. Many other state and local statues contain similar requirements. Establishing new law, the Board held – in a split decision – that when such a statute requires an employer to hire its predecessor’s employees, the successorship doctrine applies when the employer first hires the workers, not after the mandatory retention period, even though the employment is mandated by law, not by choice.

The Board’s holding substantially limits the ability of building service employers and others subject to worker retention statutes to structure their employment relationships when acquiring a company. The Board’s decision, however, may have even broader implications, as the most significant, unintended consequence may be to call into question the lawfulness of the worker retention statutes themselves. Board Member Johnson predicted in his dissent that the Board’s holding will result in the statutes being preempted by federal law: “Ironically, it could prove the death knell for local worker retention statues. By allowing a local statute to control a matter of federal labor law, the majority paves the way for these statutes to run headlong into the Supremacy Clause of the Constitution.” Member Johnson argued that it is the statutory responsibility of the Board, not local governments, to fashion federal successorship law. Thus, Member Johnson claimed that the Board’s decision in GVS Properties created a “reverse preemption” situation, where “[t]he local tail will be wagging the Federal Supremacy Clause dog.”

Whether Member Johnson’s prediction rings true will be up to the federal courts, where this issue will be decided. The courts have already provided some forecast for what is to come. In an earlier proceeding involving the same employer and facts as in GVS Properties, Judge Cogan of the Southern District of New York stated that based on the Board’s position that a new employer should become a successor before the 90-day retention period expires, “the New York City Council has superseded the Supreme Court on a matter of national labor policy…” Paulsen ex rel. N.L.R.B. v. GVS Properties, LLC, 904 F. Supp. 2d 282, 291-92 (E.D.N.Y. 2012). While the D.C.. Circuit has suggested in a prior case (Washington Serv. Contractors Coalition v. District of Columbia, 54 F.3d 811 (D.C. Cir. 1995) that the Board’s new position may be valid, much more recently two other circuit courts rejected challenges to worker retention statutes on preemption grounds but only because they assumed that successorship would not apply until after the mandatory retention periods. Rhode Island Hospitality, 667 F.3d 17 (1st Cir. 2011) and California Grocers Assn. v. City of Los Angeles, 52 Cal. 4th 177 (2011). With this type of split already existing, we may see this issue before the Supreme Court in short order.

And Don’t Forget…

The Board’s recent decision greatly expanding the scope of the reach of its joint employer test in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (August 27, 2015). This departure from its long-standing joint employer standard, which we summarized last week, will have the Board applying a much broader standard in assessing whether a joint employer relationship exists. http://www.laborrelationsupdate.com/nlrb/too-close-for-comfort-nlrb-departs-from-long-standing-joint-employer-standard/.

The flurry of pro-union activity by the Board has given employers a lot to digest. Stay tuned for additional updates, and we’re available to work through any questions you may have.

Too Close for Comfort? NLRB Departs from Long Standing Joint Employer Standard

Posted in Employer policies, NLRB

Citing “changing economic circumstances, particularly the recent dramatic growth in contingent employment relationships,” in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (August 27, 2015), a 3-2 National Labor Relations Board majority (Pearce, Hirozawa, McFerran) significantly revised and broadened the standard for assessing joint-employer status under the National Labor Relations Act. The primary justification for the Board’s sweeping departure from the current standard was that it did not “best serve the Act’s policies of encouraging the practice and procedure of collective bargaining,” considering the expansion of workplace arrangements including a diversity of subcontracting and contingent employment relationships since the 1990s.  Click here to read more.

DC Circuit: NLRB Acting General Counsel Solomon’s Tenure Violated Vacancy Statute, Unfair Labor Practice Complaint Unauthorized

Posted in NLRA, NLRB, Recess appointments, Uncategorized

The political gridlock in Washington DC caused several years of tumult at the NLRB, spawning two Supreme Court decisions (Noel Canning and New Process Steel) and several courts of appeals decisions regarding the Board’s ability to act without regular appointments, and resulted in scores of decisions having to be reconsidered by a newly constituted Board.  Most of the litigation during the last few years involved whether the Board had the requisite quorum it needed to act.  While the Board quorum received most of the attention, there also exists an entire line of arguments attacking the authority of perpetual Acting General Counsel Lafe Solomon to act during his brief tenure.  Of course, regardless of the type of claim, the business of the NLRB ground on despite these substantial issues being raised with little thought to the consequences.

In Southwest Ambulance v. NLRB, Case No. 14-1107 (DC Cir. August 7, 2015), the DC Circuit Court of Appeals held that the Acting General Counsel’s appointment violated the Federal Vacancies Reform Act (“FVRA”), which meant that during the period of violation the NLRB (as in all Regions) was without authority to issue a complaint for a 23 month period.  In Southwest Ambulance, the Court was presented with an allegation that the employer made a unilateral change to a term or condition of employment upon expiration of a collective bargaining agreement in violation of the NLRA.  After a hearing, the Administrative Law Judge concluded a violation occurred.  In its exceptions, the employer challenged the complaint on the grounds that Solomon did not have authority to issue a complaint because his appointment was in violation of the FVRA.  This argument was rejected by the NLRB, which upheld the unfair labor practice on appeal.  The employer appealed to the DC Circuit and the appeals court refused to enforce the NLRB’s order finding the complaint was issued without proper authority.

In addressing whether the FVRA was properly followed, the Court noted that the FVRA sets limits on who can serve pursuant to the statute:   “a person may not serve as an acting officer for an office under this section if, (a) during the 365-day period preceding the date of the death, resignation, or beginning of inability to serve, such person (i) did not serve in the position of first assistant to the office of such officer; or (ii) served in the position to the office of such officer for less than 90 days; and (B) the President submits a nomination of such person to the Senate for appointment to such office.”

The Court reviewed the timeline of events.  In June 2010, Ronald Meisburg resigned as NLRB General Counsel.  The President, citing the FVRA, directed Soloman who was then the Director of the NLRB’s Office of Representation Appeals, to serve as Acting General Counsel.  On January 5, 2011, the President submitted Solomon’s nomination to the Senate.  Ultimately, Solomon was re-nominated and that nomination was withdrawn in 2013.  Current General Counsel Richard Griffin’s nomination was submitted instead.

The Court held that Solomon’s appointment under the FVRA was in violation as of January 2011 when the President submitted his nomination to the Senate.  As a consequence, the Court held that under Section 3348(e)(1) of the FVRA, any action taken in violation of the statute was void.  Specifically, that provision reads in part:  “[a]n action taken by any person who is not acting [in compliance with the FVRA] shall have no force or effect” and “may not be subsequently ratified.”

The Court ruled that since the complaint issued against the employer was void and not subject to ratification, the NLRB’s consideration of the case on appeal (by a properly constituted Board) did not save the case.  The court stressed the narrow nature of its ruling:

[W]e emphasize the narrowness of our decision.  We hold that former Acting General Counsel of the NLRB, Lafe Solomon, served in violation of the FVRA from January 5, 2011 to November 4, 2013.  But this case is not Son of Noel Canning and we do not expect it to retroactively undermine a host of NLRB decisions.  We address the FVRA objection in this case because petitioner raised the issue in its exceptions to the ALJ decision as a defense to an ongoing enforcement proceeding.  We doubt that an employer that failed to timely raise an FVRA objection–regardless of whether proceedings are ongoing or concluded–will enjoy the same success.

Thus, while there are many cases in the NLRB process challenging Solomon’s ability to act during his tenure, there likely are only a few that raised this specific attack in a timely fashion:  that Solomon’s actions were in violation of the FVRA.  Still, it is hard to imagine how, if the FVRA explicitly states that all actions taken in violation of the statute are void and not subject to ratification, this argument could not be raised at any time.  Solomon took many actions during the 23 month period at issue, including appointing Regional Directors, issuing complaints, seeking injunctive relief, all of which could be considered void and not subject to ratification.

NLRB Refuses to Approve Withdrawal of Charges Despite Settlement of Class Action Case

Posted in Arbitration, Employer policies, Handbook, NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1), Uncategorized

We know that, among many other common employer policies, the NLRB considers many mandatory arbitration agreements to be unlawful, particularly where they prohibit class or collective actions.  See Murphy Oil USA, Inc., 361 NLRB No. 72 (2014).  Unlike a more run of the mill handbook violation where the government seeks removal or modification of the policy, an unlawful arbitration agreement can result in attorneys fees paid to the charging party for monies spent defending a motion to compel arbitration.  The NLRB recently handed down a case that demonstrates yet another pitfall of not having all policies vetted for legality.

In Flyte Tyme Worldwide, 362 NLRB No. 46 (March 30, 2015) the Board, on public policy grounds, refused to approve the withdrawal of charges concerning an alleged unlawful mandatory arbitration provision, even though the parties reached a substantial private settlement.  In the case, employees filed a class action wage and hour lawsuit and the employer sought to compel individual arbitration pursuant to a mandatory arbitration agreement.  The employees’ attorney, faced with the prospect of litigating the claims on an individual basis, filed charges with the NLRB challenging the lawfulness of the arbitration policy.  The NLRB issued complaint and an Administrative Law Judge, relying on D.R. Horton, Inc., 357 NLRB No. 184 (2012), enf. denied in relevant part, 737 F.3d 344 (5th Cir. 2013) found the policy violated Section 8(a)(1) of the Act.  The Judge ordered revision of the policy, notice to employees, file a motion in court to withdraw the motion to compel, and to reimburse the class representatives for any “legal or other expenses related to their opposing the [employer’s] motion to dismiss and compel individual arbitration…”

While the case was on appeal to the NLRB, the employer and employees reached a settlement of the wage and hour litigation, providing for a payment of $900,000.  The payment represented settlement to the employees and “attorneys’ fees, and litigation expenses, taxes, and interest.”  In light of the settlement, the Charging Party’s attorney sought withdrawal of the charge.   The Region did not oppose the motion to withdraw the charges.  The NLRB, however, refused to approve withdrawal of the charges.  In rejecting the motion to withdraw the charge, the NLRB noted while it

is firmly committed to promoting the public interest in encouraging mutually agreeable settlements without litigation, ‘[i]t is well established that the Board’s power to prevent unfair labor practices is exclusive, and that its function is to be performed in the public interest and not in vindication of private rights.  Thus, the Board alone is vested with lawful discretion to determine whether a proceeding, when once instituted, may be abandoned.’

The Board concluded the settlement did not effectuate the policies of the Act because “it did not address, much less provide any remedy for, the violations alleged in the charge.”  In this regard, the fact the settlement did not require the employer to modify or rescind its arbitration policy was reason not to let go of the charges.  The Board also noted that the settlement was not contingent on the Board’s approval of the withdrawal.  The Board was indicating that the subject of the charges, — the arbitration policy, — a policy which presumably applied to other employees was simply not addressed leaving things as they existed prior to the charges (and the wage and hour lawsuit) the same.

This case illustrates the need to understand the landscape and account for government oversight when working out settlements with private parties where NLRB charges have been filed.  Parties often believe they can just settle and that the government will go along with any settlement as long as the private parties are happy.  Not so.  The government will scrutinize private settlements, even those involving discharges as well as policy violations, to make sure that any settlement addresses the public policy concerns.

Union Represented Employee Not Entitled To Co-Worker Witness During Investigatory Interview, NLRB Rules

Posted in General Counsel, Investigations, Mandatory submissions, NLRA, NLRB, Non-Union employers, Protected activity, Section 7, Section 8(a)(1), Uncategorized, Unfair Labor Practices, Workplace Investigations

The last few months at the NLRB have been relatively quiet, save of course for the ambush election rules which went into effect on April 15; the true impact of these rules has yet to be revealed.  Many of the recent Board cases involve correcting decisions that were  invalidated by the Supreme Court in its Noel Canning recess appointment decision.

We recently reported that the NLRB Division of Advice had determined that an employer’s search of a company car during an investigation into employee misconduct did not trigger Weingarten rights. Cases involving Weingarten rights, the right of a union represented employee to seek representation in an investigatory interview, are interesting because the potential scenarios are limitless.  The Board recently addressed a fairly unique situation in Asset Protection & Security Services, L.P., 362 NLRB No. 72 (April 22, 2015), a case where it dismissed a complaint even though an employer denied a union represented employee’s request to have a co-worker witness, as opposed to a representative, in an investigatory interview.

The employer in Asset Protection & Security Services contracted with the federal government to supply armed and unarmed transportation and detention guards to a federal immigration facility.  The employee guards in question were represented by a union.  The parties’ collective bargaining agreement enshrined Weingarten rights, including a requirement that the employer release the union representative from work and to pay that person for time spent undertaking such duties.  Charging Party was a guard who had served as an elected union representative at various times but did not hold such a position during the time of the events of the case.

During a morning “muster” of guards, the Charging Party had an encounter with a supervisor which was considered confrontational and insubordinate by the employer.  The employer initiated an investigation and placed the Charging Party on leave pending completion of the inquiry.  The employer informed the Charging Party that he would need to come in for an interview about the incident, clearly the very type of interview governed by Weingarten because discipline or discharge was a possible outcome.

The Charging Party guard requested a union representative and asked that an international union representative represent him.  For reasons which are not set forth in the decision, the international representative did not wish to enter the facility and so the Charging Party selected a different representative from the local union, the individual who was the point of contact for disciplinary interviews.  Ultimately, the Charging Party changed his mind and in an e-mail exchange told the employer that he would represent himself in the interview.  An interview was then scheduled.

On the date and time of the interview, the Charging Party appeared at the interview along with a fellow guard who was supposed to be working.  The Charging Party asserted his co-worker would act as his witness.  The employer denied the request noting that the witness was not a union representative, was supposed to be working and was in fact on the clock.  The employer directed the co-worker to return to his duties, leaving only the Charging Party and employer representative.  During the interview the employer asked the employee to review a record of discipline that would suspend him for five days for acting in an insubordinate manner at the muster.  The Charging Party refused to answer some questions during the interview and refused to sign the notice of suspension.  It was noted that an employee’s refusal to sign a disciplinary document was not unusual.

After the interview was concluded the employer decided to terminate the employee for insubordination during the interview, including his refusal to answer questions.

The General Counsel alleged that the employer’s refusal to allow an employee witness during the interview violated the Act as a denial of Weingarten rights.

The Administrative Law Judge dismissed the complaint, a decision which was upheld by the NLRB.  The ALJ concluded the Charging Party’s Weingarten rights had not been violated because:

[Charging Party’s] request for an employee witness at his self-represented interview is not a right specifically guaranteed in Weingarten as it is currently applied.  The right to a Weingarten representative is a right to a representative who is an agent of the labor organization which serves as the exclusive representative of the employees.  Weingarten, supra, 420 U.S. at 257-258

The ALJ also rejected the General Counsel’s assertion that an employee witness was mandated under Weingarten because a conflict of interest existed between the Charging Party and local union leadership because they had run against each other for union positions.  The ALJ concluded that while the union’s representation of Charging Party in this matter “might have been awkward, it is insufficient to warrant a finding of hostility, conflict of interest, or adverse interest.”

In upholding the dismissal, the Board emphasized that it was relying on the fact the Charging Party had indicated that he would represent himself and that “under these particular facts that [Charging Party] did not effectively request a Weingarten representative.”

Why would the NLRB be so careful in its ruling upholding the ALJ’s decision?  The short answer may be that the General Counsel and NLRB are looking for a case to extend Weingarten rights to the non-union context, which would of course mean that an employee witness would be permissible given that no representative exists in that context.  Indeed, the General Counsel has said as much in his GC Memorandum 14-01, Mandatory Submissions to Advice (February 24, 2014) which requires the Regions to send to the Division of Advice, cases “involving the applicability of Weingarten principles in nonunionized settings. . .”

Over the years, the Board has gone back and forth on whether to apply Weingarten rights in the non-union setting.  Currently, Board law holds that such rights do not apply in the non-union context.  So, it appears it may be only a matter of time before the law in this area changes…..again.

Regional Director Issues First Post-Pacific Lutheran Decision

Posted in NLRB

It did not take long for the fallout from the NLRB’s Pacific Lutheran University decision to begin. That decision, issued on December 16, 2014, announced new standards for (1) exercise of NLRB jurisdiction over religiously-affiliated colleges and universities; and (2) determining the managerial status of faculty members under the Supreme Court’s 1980 decision in Yeshiva University.  See our client alert on Pacific Lutheran here. In the first decision among a number of cases remanded by the Board for consideration in light of Pacific Lutheran, the NLRB Regional Director in Seattle ruled on March 3 that the Board had jurisdiction over Seattle University and that full-time contingent faculty members were not managerial employees.  He ordered that the ballots in the case, which had been impounded pending the Board review, be opened and counted.

The Regional Director found, based on the record already made in the case, that the university held itself out to the public as a Jesuit Roman Catholic institution providing a religious educational environment, thus satisfying the first part of the new Pacific Lutheran test. As in Pacific Lutheran, however, the Regional Director held that the university did not hold out the petitioned-for faculty members as performing a religious function. A general statement in the faculty handbook that “each member of the faculty is expected to show respect for the religious dimension of human life” was found insufficient, where there was not evidence that faculty members were required to serve as religious advisors to students, propagate the tenets of the Society of Jesus, engage in religious training, or conform to the tenets of Catholicism in their job duties.

In determining that the full time contingent faculty members were not managerial employees, the Regional Director found that they lacked authority to actually control or effectively recommend decisions affecting university policy in the three primary or two secondary areas of authority identified by the Board in Pacific Lutheran. He found that that the Academic Assembly exercised authority in the primary area of academic programs, but had no say in enrollment management and only a minimal authority over finances—the other two primary areas. Most importantly, tenured faculty made up a majority of the Assembly, and no contingent faculty served on the Program Review Committee, which reviewed all proposals for curricular change, and there was no evidence that they had a significant role on other committees.

The result in Seattle University is not surprising, given the stringent test announced in Pacific Lutheran for excluding religiously-affiliated schools from Board jurisdiction, and the limited role that contingent faculty have in governance of most colleges and universities. Further guidance can be expected as Regional Directors decide a number of other cases remanded by the Board for consideration under the Pacific Lutheran standards, including at least one case involving the managerial status of tenured faculty.

Search Of Company Vehicle Not Employee Interview Triggering Weingarten Rights, NLRB Division of Advice

Posted in Advice, Investigations, Investigations, NLRA, NLRB, Section 7, Section 8(a)(1), Uncategorized, Unfair Labor Practices, Workplace Investigations

The scope of a union-represented employee’s right to have a union representative present during an investigatory interview is one of the more interesting areas of labor law.  Even though most people who practice labor relations know the basics of the so-called Weingarten rights, the same types of questions continue to arise because there are an infinite variety of scenarios.  These questions include:  how long does one have to wait for the representative?  Can the employee request a particular representative?  Exactly how can the representative participate in the interview?  Are employer actions as opposed to interviews part of the Weingarten analysis?

The NLRB recently released  Southwestern Bell Telephone Company, 14-CA-141000, Advice Memorandum dated February 6, 2015, a memorandum issued by the Division of Advice, which addressed the last question.  The issue addressed in the Advice Memorandum was whether an employer’s search of a company car during a pending investigation was something that triggered Weingarten rights.  In that case, the employer found a small bag of marijuana underneath empty chairs where an employee had been sitting.  The employer called the employee in to ask about the marijuana and the employee requested a union representative; the request was granted.   The initial interview concluded and the employee went to lunch with her union representatives.

While the employee was at lunch the employer searched the company vehicle used by the employee.  Inside the vehicle, the employer found a CD case that contained music CDs and pornographic DVDs but no evidence related to the marijuana was discovered.  When the employee returned from lunch she was called into a second interview by the employer, which was again attended by the union representatives.   The employer asked the employee about the CD case and she acknowledged that it was hers but denied knowledge of the pornographic DVDs.

The employer suspended the employee but ultimately returned her to work with no loss of pay.  The employer then issued the employee a written reminder about the possession of the pornographic DVDs.  The union challenged the discipline in a grievance but did not assert the search violated the employee’s Weingarten rights.  The employee then filed a charge alleging that the employer violated her Weingarten rights asserting  the search of the company vehicle constituted a “continuation” of the investigatory interview that started with the inquiry about the marijuana and did not conclude until the second interview after lunch.

The Division of Advice directed that the charge be dismissed.  In its analysis of the case, Advice recited the basics of the law, noting that an “employer’s questions qualify as an investigatory interview even when they are merely implicit.”  Thus, Advice noted that the NLRB has found Weingarten rights apply when an employer requests an employee to submit to a sobriety test.  See System 99, 289 NLRB 723, 723, n. 2 (1988).  Advice noted further that there was “no question” the employer’s interactions with the employee “before and after the vehicle search were investigatory interviews under Weingarten.”

As to the search of the vehicle itself, though, Advice concluded that it was neither an investigatory interview or a “continuation” of the investigatory interview.  Advice noted the reasons for this conclusion:

When the Employer searched the company vehicle, it did not engage in a confrontation with the Employee and did not ask the Employee any questions, even implicitly. Instead, the Employee was not present for the search, and was not asked to aid the search, and was not even aware the search was taking place.  Because the Employer asked nothing of the Employee, the Employee had no need for a Union representative’s assistance.

This is a logical conclusion; after all, it was the company’s vehicle that was searched and the union did not assert the search was improper.  Still, the case is instructive and Advice memoranda are always full of good case citation and thoughtful analysis.   The case does highlight a fact about today’s labor relations climate:  given the receptivity of the NLRB to extension of rights, the fact this charge was filed is not a surprise.

NLRB General Counsel Issues Guidance on Deferral to Grievance Arbitration and Settlements

Posted in Arbitration, Deferral

Following the decision of the National Labor Relations Board in Babcock & Wilcox Construction Co., 361 NLRB No. 132 (December 14, 2014), the NLRB General Counsel has issued Memorandum GC 15-02 (February 10, 2015), which provides guidance to the NLRB regional offices and to the general public regarding the application of that decision in pending and future cases.  The memorandum is lengthy and in some respects complex, but here are the key points.

The New Test:  In Babcock & Wilcox, the Board created a new test for deferring to awards rendered by labor arbitrators in cases also involving alleged violations of Sections 8(a)(1) and (3) of the National Labor Relations Act.  The new test states that deferral will be appropriate “where the arbitration procedures appear to have been fair and regular, the parties agreed to be bound, and the party urging deferral demonstrates that: (1) the arbitrator was explicitly authorized to decide the unfair labor practice issue; (2) the arbitrator was presented with and considered the statutory issue, or was prevented from doing so by the party opposing deferral; and (3) Board law ‘reasonably permits’ the arbitral award.”  (GC Mem. at p. 2.)

Arbitrator’s Authority:  Explicit agreement on authority for the arbitrator to reach the statutory issues is a threshold requirement.  It must be given explicitly by the parties either in their collective bargaining agreement or in an ad hoc agreement with respect to any particular arbitration.  If the region has any questions about whether either such agreement exists, the question should be presented to the General Counsel’s Division of Advice for resolution.

Issue Actually Presented and Decided:  The test also requires the arbitrator to have been actually presented with, and to have actually decided, the statutory issue.  The General Counsel stated that this does “not require that an arbitrator conduct a ‘detailed exegesis’ of Board law . . . . “ because many arbitrators (and employer and union representatives) are not necessarily formally trained in labor law. (Id. at p. 4.) But neither will the Board “assume that an arbitrator implicitly ruled on the statutory issue if the award merely upholds disciplinary action under a ‘just cause’ analysis . . . .” (Id.)  What the Board requires is evidence that the parties clearly litigated the statutory issue before the arbitrator, and that the arbitrator clearly considered the issue in deciding the grievance.  (See id. at p. 5, citing and quoting Inland Steel, 263 NLRB 1091, 1096-97 (1982).)  The regions were instructed to present to the Division of Advice any questions concerning whether the statutory issue was presented to and considered by the arbitrator, as well as any cases where a party argues that it was prevented from doing so, including those cases where a union waited to file an unfair labor practice charge until after the underlying facts were arbitrated as part of a grievance, thus preventing the arbitrator from being presented with and deciding the statutory issue.

Reasonably Permitted Standard:  The General Counsel also addressed the key question of how an arbitrator’s award will be deemed to be “reasonably permitted” under the Act.  The General Counsel noted that in the past the test was whether the award was “clearly repugnant” to, or “palpably wrong” under, the Act.  Under this test the Board would generally defer unless there “no conceivable reading of the facts . . .  that would support the arbitrator’s decision.” (GC Mem. at p. 7, quoting Babcock & Wilcox, slip op. at 8.)  Now, under the new standard, the award must represent “a reasonable application of the statutory principles that would govern the Board’s decision.” (Id.)  The General Counsel’s gloss on this important and difficult to define issue is that the arbitrator need not rule exactly as the Board would have, nor will the Board engage in equivalent of de novo review of arbitrator’s awards.  Rather, the award need only reach a result that a decision maker reasonably applying the Act could reach, making allowances for the granting of some degree of deference to the arbitrator’s factual findings and credibility resolutions.  Further, the arbitrator’s remedy need not exactly match the remedy that the Board would have imposed, but some effective remedy must have been granted.  (GC Mem. at pp 7-8.)  Clearly this is one of the more difficult questions arising in deferral cases, and we expect that there will be additional jurisprudence in this area, as questions involving whether an award is “reasonably permitted” are to be presented to the Division of Advice.

Pending and Future Cases:  The GC Memorandum addressed the somewhat surprisingly complicated issue of the application of Babcock & Wilcox to pending and future cases. As a rule of thumb, the prior deferral standards apply if the arbitration hearing occurred before December 15, 2014, the date of the Babcock & Wilcox decision.  If the collective bargaining agreement under which the grievance arose was executed after December 15, 2014, then the new Babcock & Wilcox standards apply.  The complications arise with respect to grievances arising under collective bargaining agreements executed on or before December 15, 2014, but the arbitration hearing occurred after that date.  In such cases, which standard applies will depend on whether there was explicit authorization of the arbitrator to decide the statutory question.  If so, then the new Babcock & Wilcox standards apply – if not, the old standards apply. Special situations include collective bargaining agreements that automatically renewed after December 15, 2014, or that had expired by that date but there were still grievances pending under the expired contract after that date.  These are too complex to address in this blog, but the entire discussion can be reviewed at pp, 8-10 of the GC Memorandum.

Pre-Arbitration Deferral:  The GC Memorandum instructs the regions to no longer place cases in pre-arbitration deferral (i.e., await the outcome of the arbitration decisions) unless the threshold requirement of agreement to present the statutory issues to the arbitrator had been met. A detailed discussion of the issues, including its application to pending cases, is contained at pp. 10-12 of the GC Memorandum.

Grievance Settlements:  Finally, the General Counsel also addresses the question of grievance settlements which purport to dispose of the related unfair labor practice.  In those cases, the Babcock & Wilcox deferral standard will apply generally in the same manner as it does to arbitration awards, with the key questions being whether “(1) the parties intended to settle the unfair labor practice issue; (2) they addressed that issue in the settlement agreement; and (3) Board law reasonably permits the settlement agreement.”  (GC Mem. at 13.)

An Observation re the General Counsel’s Prosecutorial Discretion:  All of these instructions by the General Counsel are based on the Board’s decision, but they involve a power unique to the General Counsel – his unreviewable prosecutoral discretion under Section 3(d) of the Act.  Oddly, for decades the Board’s decisions in this area have impinged on the General Counsel’s authority.  One wonders what would happen if a future General Counsel, unhappy with these deferral rules, simply decided that her unreviewable prosecutorial discretion allowed her to ignore them?  As a practical matter, this may quietly happen, especially where the resolution of a major labor dispute depends on deferral to an arbitration award or, more likely, a settlement reached by the parties involving the requested dismissal of Sections 8(a)(1) and (3) unfair labor practice charges.

Higher Education Alert: NLRB Trend in Easing Unionization Continues with Recent Decision

Posted in Bargaining units, NLRA, NLRB, Representation Elections

The National Labor Relations Board issued a 3-2 decision last month in Pacific Lutheran University, 361 NLRB No. 157, in which it significantly modified the standards for determining:  (1) whether college or university faculty members are managerial employees and thus not protected by the National Labor Relations Act; and (2) when the Board should decline to exercise jurisdiction over a college or university that claims to be a religious institution.  (Proskauer had submitted an amicus brief in the case in support of various organizations representing colleges and universities on the first issue.)  (For a fuller discussion of the Board’s decision, please see Proskauer’s Client Alert.)

On each issue, the majority’s decision seemingly eases the path for unions seeking to represent faculty members at institutions of higher education:

  • First, the majority put a new gloss on the Supreme Court’s seminal decision concerning NLRA coverage of faculty members, NLRB v. Yeshiva University.  (Proskauer represented Yeshiva University in that case, which the high court decided in 1980.)  The Board will now find that faculty members are managerial employees only where their recommendations are “almost always” followed by administrators.  In addition, the majority’s new test identified three “primary” areas of decision making that it will accord the greatest weight, but in doing so combined in one such primary area (“academic programs”) several academic decisions that the Board has traditionally given greater weight in dozens of decisions over several decades, and elevated two other areas of decision making (enrollment management and finances) that have never held such significance.  And critically, the majority essentially avoided the D.C. Circuit’s mandate in LeMoyne-Owen College v. NLRB and Point Park University v. NLRB to explain “which facts are significant and which less so, and why.”  As dissenting Member Johnson wrote:

[T]he majority has decided to create a comprehensive test here, and, therefore, the actual weighting of its factors, including what showing is sufficient to meet the majority’s test, is a rather large analytical question to be left unresolved, particularly if the hope is to provide predictability and guidance with regard to how the Board will make these determinations in the future.

  • Second, the majority abandoned the “substantial religious character” requirement that it had previously applied in determining whether to assert jurisdiction over religiously-affiliated colleges and universities, but declined to adopt the D.C. Circuit’s three-part test in University of Great Falls v. NLRB that sought to avoid the risk of infringement upon First Amendment rights as addressed in the Supreme Court’s decision in NLRB v. Catholic Bishop of Chicago.  Instead, the Board will now require a college or university to show “that it holds out the petitioned-for faculty member’s [sic] as performing a specific role in creating or maintaining the school’s religious educational environment,” a requirement that the dissenting Board members argued does no better in mitigating the constitutional risk created by the Board’s assertion of jurisdiction.

The Pacific Lutheran decision closely followed the Board’s announcement of new rules that will speed up representation elections and, combined with the Board’s decision in Specialty Healthcare, which liberalized the standard for finding a petitioned-for bargaining unit to be appropriate, epitomizes a trend favoring unions in representation proceedings.  But given the strongly worded dissenting opinions and the majority’s failure to adequately address the D.C. Circuit’s concerns on either issue, we expect that Pacific Lutheran will not be the final word for the higher education community.